United States District Court, S.D. New York
OPINION & ORDER
NELSON S. ROMN, District Judge.
Shavon Moultrie ("Plaintiff') brings this action against the New York State Department of Corrections and Community Supervision ("Defendant") for alleged gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and New York State Executive Law § 296(1)(a). Defendant moves to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motion is GRANTED.
STANDARD ON A MOTION TO DISMISS
To survive a motion to dismiss, a complaint must supply "factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Comtnc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Starr v. Sony BMG Music Entm't, 592 F, 3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In applying this standard, a court should accept as true all well-pleaded factual allegations, but should not credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Id.
Defendant hired Plaintiff on September 28, 2009 as a Correctional Officer Trainee at Defendant's Sing Sing Correctional Facility ("Sing Sing"). (First Am. Compl. ¶ 13, ECF No. 16.) Defendant's hiring policy subjects all new hires to a one-year probationary period. (Id. ¶ 14.) Plaintiff allegedly received positive employee evaluations during the first five months of her probationary period prior to the events leading to her termination. (Id. ¶¶ 8, 16.)
Defendant's Employee Manual states, "No employee shall enter any correctional facility with a cellular phone, wireless phone, pager, laptop computer, personal digital assistant, any device with global positioning capabilities, any device with audio recording capabilities, radio, camera, or other similar electronic device" ("Section 6.28"). (Id. ¶ 24.) On March 2, 2010, Correctional Officer ("CO") Emely Torres allegedly found a SIM card in the COs' office at Sing Sing, which allegedly falls within Section 6.28. (Id. ¶ 52.) As part of the investigation into the contraband, Defendant allegedly requested memoranda from all COs assigned to the unit where the SIM card was discovered. (Id. ¶ 55.) Plaintiff submitted a memorandum accounting for her whereabouts and stating that she did not see a SIM card or any other contraband in the COs' office. (Id. ) Later that day, Plaintiff submitted a supplemental memorandum admitting that she had recently changed the SIM card in her cell phone. (Id. ¶ 56.) Plaintiff then spoke with her superior officer, claimed that she was certain she had discarded her old SIM card, but admitted that there was a slight chance that she had unintentionally brought the SIM card into the facility. (Id. ¶¶ 57-59.)
Defendant had the SIM card analyzed and cross checked the contact numbers against Plaintiff's personnel file and the facility's list of inmate phone calls. (Id. ¶¶ 61-64.) Ultimately, Defendant determined that the SIM card belonged to Plaintiff and discovered that some of Plaintiff's contacts stored on the SIM card were "inmate contact numbers"-i.e., phone numbers that inmates had received calls from or had themselves called. (Id. ¶¶ 65-75.) Defendant questioned Plaintiff about her contacts and connections with inmates, and Plaintiff denied contacting inmates or knowingly storing numbers on her phone that were linked to inmates. (Id.)
Defendant placed Plaintiff on administrative leave on May 28, 2010 and terminated her on June 4, 2010. (Id. ¶¶ 77-78.) Plaintiff sought and obtained internal review of the termination. (Id. ¶¶ 80-81.) At her meeting with human resources, Plaintiff allegedly presented evidence that she had not placed any calls to inmate contacts since her date of hire. (Id. ¶ 81.) Nevertheless, Defendant affirmed the termination. (Id. ¶ 82.) Plaintiff claims that her termination was motivated by gender because male employees who engaged in purportedly similar conduct received more favorable treatment. (Id. )
Defendant moves to dismiss arguing that Plaintiff fails to make out a Title VII claim and that her state claims are barred by the election of remedies doctrine and the Eleventh Amendment.
To establish a prima facie case of discrimination, a plaintiff must establish that: (1) she belongs to a protected class; (2) she was qualified for the position at issue; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Although Plaintiff need not plead the elements of a prima facie case to survive a motion to dismiss, see Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), these elements provide guidance, see Kurian v. Forest Hills Hosp., 962 F.Supp.2d 460, 469 (E.D.N.Y. 2013). "[T]here are no heightened pleading standards for employment discrimination claims." Algarin v. City of New York, No. 12 CIV. 1264 LTS, 2012 WL 4814988, at *2 (S.D.N.Y. Oct. 10, 2012). However, the claim must be "facially plausible" and give "fair notice... of the basis for the claim." Albin v. LVMH Moet Louis Vuitton, Inc., 13-cv-4356 JPO, 2014 WL 3585492 (S.D.N.Y. July 8, 2014). To survive a motion to dismiss, plaintiff must "set forth factual circumstances from which discriminatory motivation can be inferred, which may include facts suggesting preferential treatment given to similarly situated individuals, or remarks that convey discriminatory animus." Algarin, 2012 WL 4814988, at *2 (internal quotation marks omitted).
Defendant assumes, for purposes of this motion, that Plaintiff has adequately alleged the first three elements. Defendant only disputes Plaintiff's claim that the circumstances of her termination raise an inference of discrimination. For the following reasons, the Court agrees.
A plaintiff attempting to raise an inference of discrimination through comparator employees must show that those employees are "similarly situated in all material respects, " meaning that they (1) "were subject to the same workplace standards" and (2) engaged in conduct "of comparable seriousness." Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). "The standard requires a reasonably close resemblance of facts and circumstances' and there must be an objectively identifiable basis for comparability." Risco v. McHugh, 868 F.Supp.2d 75, 100 (S.D.N.Y. 2012). Less severe punishment for objectively less serious or qualitatively different misconduct does not raise an inference of discrimination. E.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 568 (2d Cir. 2000) (holding proposed comparators were not similarly situated where plaintiff had a physical fight and comparators engaged in verbal altercations), superseded on other grounds by N.Y.C. Local Law No. 85 (2005); Albury v. J.P. Morgan ...